Fair Use in a Nutshell

Fair Use in a Nutshell:
A Roadmap to Copyright's Most Important Exception

By Attorney Lloyd J. Jassin

Verter muz men vegen un nit tsailer. [Words must be weighed not counted.]

-- Old Yiddish proverb

Fair use, which is a defense to copyright infringement, allows scholars, researchers and others to use protected works for socially productive purposes without seeking permission. Arguably, one of the most difficult areas of copyright law, clients often ask "What constitutes fair use?" What follows is a checklist of points to remember. Unfortunately, fair use is impossible to quantify. Nonetheless, this checklist should help you understand the delicate balancing that fair use requires. If there is any doubt whether a proposed use is fair, seek permission or seek the advice of a qualified professional.

Fair use is not a simple test, but a delicate balancing of interests. Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.

Four factors must be balanced in each case to determine whether a specific use is fair:

The purposes and character of the use, including whether the use is primarily
commercial in nature;

The nature of the copyrighted work being borrowed from;

The amount and importance of the portion used in relation to the copyrighted
work as a whole;

The effect on the potential market or value of the copyrighted work.

While fair use favors criticism, comment, news reporting, teaching, scholarship and research, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use.

Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, it weighs against fair use.

Fact-based works, which can be expressed in limited ways, receive less protection than fanciful works that can be expressed in a multitude of ways.

Visual works enjoy a high degree of protection under copyright law.

Synthesizing facts in your own words is better than verbatim copying. However, close paraphrasing may constitute copyright infringement if done extensively.

Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.

Do not take the "heart" of the work you're copying from. If what you've copied is important to the original, it will weigh against finding fair use.

10.

Do not quote from a copyrighted work simply to "enliven" your text. Make certain you comment upon the material you borrow or can otherwise justify its use.

11.

Never copy something to avoid paying permission fees, or to avoid creating something on your own.

12.

Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone transform a "foul" use into a "fair use."

13.

Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.

14.

Don't compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use.

15.

If permission is denied and you feel use is essential to your own work, seek legal advice.

16.

Remember that fair use is a "defense" to copyright infringement, not a right. When in doubt seek permission or consult an attorney.

NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is co-author of the bestselling Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.). Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators. He is counsel to the Publishers Marketing Association and Vice Chair of the Small Press Center. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New York, NY 10036.

Adapted from the Copyright Permission & Libel Handbook (John Wiley & Sons), by Lloyd J. Jassin and Steven C. Schechter.